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United States v. Rollow, 10th Cir. (2007)
United States v. Rollow, 10th Cir. (2007)
v.
SHIRLEY M AYE ROLLOW ,
Defendant-Appellant.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Now appearing before this court a second time, M s. Rollow contends the
district court misconstrued the scope of the remand order. Focusing on the last
phrase of the panels mandate, M s. Rollow argues that the language directing
that she be re-sentenced in accord with Booker-Fanfan, id., required the district
court to reconsider the propriety of her entire sentence rather than the two
sentence enhancements exclusively. She then goes a step further and challenges
both her base offense level as well as the sentence enhancements. She contends
her base offense level is unconstitutional because it was based on a drug quantity
that was not found by the jury; she challenges the sentence enhancements by
arguing the district court was without authority to retroactively apply the
sentencing guidelines to her case in an advisory fashion. Therefore, invoking
Bookers substantive rule while attempting to avoid its remedial holding,
M s. Rollow concludes that her proper sentencing range is 10 to 16 months.
II. Discussion
A. Scope of Remand
W e first address M s. Rollows contention that the district court improperly
limited the scope of the remand order. Her argument is simply that the mandate
issued by this court vacated her entire sentence and required the district court to
completely reevaluate her sentence in light of Booker. Because M s. Rollow
preserved in the district court the allegations of error she argues on appeal, we
apply harmless error analysis to ensure that any error did not affect her
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substantial rights. See United States v. M arshall, 432 F.3d 1157, 1160 (10th Cir.
2005); Fed. R. Crim. P. 52(a).
Our analysis here is governed by the mandate rule, which is a
discretion-guiding rule that generally requires trial court conformity with the
articulated appellate remand. United States v. M oore, 83 F.3d 1231, 1234
(10th Cir. 1996). Although a district court is bound to follow the mandate, and
the mandate controls all matters within its scope, a district court on remand is free
to pass upon any issue which was not expressly or impliedly disposed of on
appeal. Proctor & Gamble Co. v. Haugen, 317 F.3d 1121, 1126 (10th Cir. 2003)
(internal quotation and alteration omitted). Thus, where the appellate court has
not specifically limited the scope of the remand, the district court generally has
discretion to expand the resentencing beyond the sentencing error causing the
reversal. United States v. Lang, 405 F.3d 1060, 1064 (10th Cir. 2005) (quotation
omitted). To apply the mandate rule to the present case, we examine the
mandate and then look at what the district court did. Proctor & Gamble Co.,
317 F.3d at 1126 (internal quotation omitted).
Here, our mandate stated, Accordingly, Rollows conviction is affirmed.
However, her sentence is vacated and the matter is remanded to the district court
with direction that she be re-sentenced in accord with Booker-Fanfan. Rollow,
146 F. Appx at 295. Because this mandate lacks the sort of specificity required
to limit the district courts resentencing authority, see United States v. Hicks,
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146 F.3d 1198, 1200-01 (10th Cir. 1998), the district court had discretion to
accommodate M s. Rollows request and expand the scope of resentencing.
But the district court apparently believed it was constrained to reevaluate
only the two sentence enhancements. Indeed, recognizing that we had focused on
the district courts findings that M s. Rollow obstructed justice and played a major
role in the offense, the district court interpreted our mandate as limiting the
remand to the raising of the offense level from 30 to 34 on the basis that the
guidelines were mandatory. Re-Sent. Tr. 12. The court thus declined to expand
the scope of resentencing beyond the two sentence enhancements, stating:
I do believe that this Court is obliged to conduct this hearing and the
resentencing only on those issues, and if if the scope should be
enlarged, as [defense counsel] suggest[s], it seems to me that the
Court of Appeals w ould have to be the body to instruct this Court to
do so, and thats my analysis of the of the remand order.
....
[I]f the Court of A ppeals should clarify that and agree with [defense
counsel], it will come back and and well proceed again with a
broadened scope, but it is not it is not my role, in my opinion, to
attempt to broaden the issues remanded for this Court to address, and
it is only for the Court of Appeals to do so.
Id. at 12-13.
As these passages demonstrate, the district court incorrectly believed it
could not reconsider M s. Rollow s entire sentence. This error was harmless,
however, because although M s. Rollow initially objected to the drug quantity
used to establish her base offense level, she made no offer of proof to refute that
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quantity. Indeed, she has failed to proffer any evidence at all disputing the
quantity of pseudoephedrine alleged in the PSR. Her inability to do so is a strong
indication that the base offense level was premised on actual conduct. See United
States v. Riccardi, 405 F.3d 852, 876 (10th Cir. 2005). M oreover, the jury heard
ample evidence that M s. Rollow was involved in the conspiracy and was
responsible for 3,438 kilograms of pseudoephedrine. The jury thereafter
convicted her for committing the offense. Under these circumstances, the district
courts failure to reevaluate M s. Rollows base offense level did not affect her
substantial rights.
Additionally, we note that based on the record before us, there is no
indication that M s. R ollow raised this issue on direct appeal. The fact that we
completely omitted M s. Rollows base offense level from our previous analysis
strongly suggests that despite objecting to the drug quantity calculation at
sentencing, she concentrated her appellate efforts on challenging her sentence
enhancements. If this is indeed the case, it is not at all surprising that the district
court declined to reevaluate M s. Rollows base offense level where she did not
challenge it on appeal. In any event, we are satisfied that M s. Rollows
substantial rights were not violated and therefore conclude that the district courts
error in limiting the scope of the remand was harmless.
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Defense counsel cites Jones v. Unite [sic] States, 527 U.S. 373, 388, 119
S.Ct. 1215 (1999). See Aplt. Br. at 3, 15. This reference merges the citations of
tw o different cases, Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215 (1999),
and Jones v. United States, 527 U.S. 373, 119 S.Ct. 2090 (1999). The error is
complicated by the fact that throughout his brief, counsel refers to the authority
only as Jones. See, e.g., Aplt. Br. at 16. Because the basis of M s. Rollows
appeal concerns a sentencing issue addressed in Jones v. United States, 526 U.S.
227, 119 S.Ct. 1215 (1999), we can only assume counsel intended to invoke this
authority, and not Jones v. United States, 527 U.S. 373, 119 S.Ct. 2090 (1999).
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III. Conclusion
The judgment of the district court is AFFIRMED.
David M . Ebel
Circuit Judge
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